Saturday, June 26, 2010

McDonnell and Cuccinelli at Odds Over 14th Amendment Protection for GLBT People?

When Governor McDonnell issued his executive directive prohibiting discrimination based on sexual orientation, he said that GLBT people are protected by the 14th amendment to the United States Constitution:

The Equal Protection Clause of the United States Constitution
prohibits discrimination without a rational basis against any class of persons. Discrimination based on factors such as one’s sexual orientation or parental status violates the Equal Protection Clause of the United States Constitution.

Today, Ray Reed reported in the The Lynchburg News and Advance this exchange between a student attending Boys State and Attorney General Cuccinelli that strongly suggests that the AG and the Governor do not agree on this fundamental legal principle:

"I'm sure you are aware of a letter that was sent to state universities regarding discrimination policies based on sexual orientation," a student said to Cuccinelli. "How is that not a violation of the equal protection clause of the 14th Amendment?" the student asked.

"I know about it," Cuccinelli replied. "I signed the letter. It was legal advice we gave to universities that was consistent with what five attorneys general before me had given. [This is a matter of debate as former Governor and Attorney General Gerald Baliles has pointed out. Prior AG's were focusing on local governments, not universities, in their opinions.]

"State universities are not free to create any specially protected classes other than those dictated by the General Assembly," Cuccinelli said.

"Your question is, why is that not a violation of the 14th Amendment's equal protection clause. Frankly, the category of sexual orientation would never have been contemplated by the people who wrote and voted for and passed the 14th Amendment," he said.

"There are judges who think these things 'evolve,' is the word they like to use," Cuccinelli said, but the correct approach to making such a change would be a constitutional amendment, he said.

The Attorney General's answer to the student prompts two follow up questions: "Would the AG or his office would defend the Governor if someone the Governor disciplines under the Executive Directive were to sue him?" "Would the AG defend a university nondiscrimination policy that includes sexual orientation?"

The AG has said in an unpublished statement given to a Washington Post reporter in response to attacks on his office's defense of George Mason's on campus gun prohibition that it's his job to defend state law and state officers and agencies unless their acts are unconstitutional.

How would he apply this standard if asked to defend either university nondiscrimination policies or the Governor's executive directive that protect GLBT Virginians from discrimination?